P. v. Maka
Filed 12/12/13 P. v. Maka CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOACHIN
MAKA,
Defendant and Appellant.
A137604
(San Mateo
County
Super. Ct.
No. SC077067A)
Appellant Joachin Maka was convicted, pursuant to a plea
agreement, of possession of a loaded firearm in a public place. On appeal, he contends the trial court erred
when it denied his motion to suppress evidence because police officers did not
have reasonable suspicion to stop his car based on his briefly honking his horn
as he drove past their recently stopped car.
We conclude that the prosecution failed to satisfy its burden of proving
that there was objectively reasonable suspicion for the traffic stop. We shall therefore reverse the judgment and
remand the matter to the trial court for further proceedings.
Appellant
was charged by information with one count of possession of a loaded firearm in
a public place (Pen. Code, § 25850, subd. (c)(6)).
Appellant
filed a motion to suppress evidence, pursuant to Penal Code section 1538.5 and,
after a contested hearing, the trial court denied the motion.
On January 11, 2012, appellant pleaded no contest to the charged offense,
and the trial court suspended imposition of sentence and placed appellant on
supervised probation for three years.
On January 14, 2013, appellant filed a notice of appeal.
Appellant
contends the trial court should have granted his motion to suppress evidence on
the ground that police lacked reasonable suspicion to stop his car after he
briefly honked his car horn.
A. Trial
Court Background
Atherton
Police Officer David Metzger and San Mateo Police Officer Scott Valencia, both
members of the San Mateo County gang task force, were the
sole witnesses at the hearing on appellant’s motion to suppress evidence. On November 16, 2012, at about 9:00 p.m.,
Valencia was driving an unmarked police vehicle in which Metzger and Foster
City Police Officer Sealy were passengers.
They were traveling on Newbridge Street, a residential street in East
Palo Alto, when Valencia pulled the vehicle over to the right shoulder of the
roadway. The shoulder had a sidewalk and
curb, and was intended for vehicle parking.
There was room for any car traveling behind them to drive by without
moving out of its lane. It took five to
ten seconds for the police vehicle to stop moving; it had already come to a complete
stop when appellant drove past and sounded his car horn for two to three
seconds.
Both
officers testified that the car traveling behind them was not affected in any
way by their vehicle pulling over to the side of the road. The driver did not have to swerve, brake, or stop
his car, and the officers did not know why he sounded the horn. Metzger acknowledged that a driver might
honk, depending on the circumstances, if he or she believed that a passenger could
“suddenly exit the [stopped] vehicle and that the door may possibly swing out
into the roadway in front of them.†In the
present situation, however, the police vehicle was “so far off the roadway that
even a door opening wouldn’t have been out into the traffic portion of the
roadway,†although it was possible that someone could have stepped out of the
police vehicle and into the lane of traffic.
As to
the reason for the driver honking the horn, Metzger believed either that the
“occupants of the vehicle may have recognized us as a police vehicle, even
though our vehicle was unmarked, and may have perhaps been in need of
assistance,†or that, “if the car was just driving by honking its horn, it
would have been a violation of the Vehicle Code.†Therefore, the officers conducted a traffic
stop of the car. Appellant was in the
driver’s seat, Allan Finau (Finau) was in the front passenger’s seat, and
Anthony Finau was in the rear passenger’s seat.
After the officers approached the vehicle, Metzger spoke with Finau
while Valencia spoke with appellant.
Metzger
testified that Finau could not provide identification, but gave his name and
date of birth. Based on that
information, Metzger conducted a records check, which revealed that Finau had
an outstanding warrant. Metzger
therefore handcuffed Finau before attempting to confirm the warrant. He then located a photograph, through “Cal
Photo,†which confirmed that Finau was in fact the person with the outstanding
warrant. The entire warrant and photo
check process took approximately five to ten minutes.
Valencia
asked appellant for his driver’s license, but appellant said he did not have it
with him. Valencia also asked if there
was anything illegal in the vehicle, and appellant said there was not. Valencia then asked if he could search the
vehicle, and appellant said, “okay.â€
Once appellant and the passengers were out of the car and sitting on the
curb, Valencia and Sealy searched the car.
front passenger seat. Appellant and
Anthony Finau were then placed in handcuffs, for safety reasons. Metzger informed appellant that Finau had
been arrested for possession of a handgun.
Appellant asked, “ ‘what if it’s not his?’ †Metzger told him that “it doesn’t matter if
it’s not his. It was located under his
seat.†Appellant then said, “ ‘fuck
it; it’s mine.’ †At that point,
Metzger read appellant his Miranda
rights, appellant gave a statement, and Metzger arrested him. Metzger estimated that the total time that
elapsed between the traffic stop and appellant’s arrest was approximately 15
minutes.
At
the conclusion of the hearing, the trial court denied the motion to suppress,
explaining: “Based on the totality of
the circumstances and the evidence presented in this hearing, the Court will
find that the traffic stop was lawful [and] [t]hat the detention was not unduly
prolonged. Especially in light of the
fact that it was determined in a relatively short period of time, that Allan
Finau had an outstanding warrant for his arrest.â€
B. Legal
Analysis
“The
Fourth Amendment guarantees ‘[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures . . . .’ (U.S. Const., 4th Amend.) Generally, this means that warrantless
searches are per se unreasonable unless the search falls within a recognized exception. [Citation.]
One exception involves an investigatory stop of a vehicle based upon an
objectively reasonable suspicion that the person stopped has broken the
law. [Citation.] If the stop does not meet this test, its ‘ “fruits†’
cannot be used against the person whose Fourth Amendment rights
the evidence is appropriately granted.â€
(People v. Reyes (2011) 196 Cal.App.4th
856, 859-860 (Reyes), italics added,
quoting Wong Sun v. United States
(1963) 371 U.S. 471, 484-485; see Terry
v. Ohio (1968) 392 U.S. 1, 22.)
“A
detention is reasonable under the Fourth Amendment when the detaining officer
can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity. . . .’ [Citation.]â€
(People v. Souza (1994) 9
Cal.4th 224, 231 (Souza).) While reasonable suspicion can arise from less
information than is required for probable cause, “[t]he officer’s suspicion
must be supported by some specific, articulable facts that are ‘reasonably
“consistent with criminal activity.†’
[Citation.] The officer’s
subjective suspicion must be objectively reasonable, and ‘an investigative stop
or detention predicated on mere curiosity, rumor, or hunch is unlawful, even
though the officer may be acting in complete good faith. [Citation.]’
[Citation.]†(
1083.)
“[T]he
burden of proving the justification for the warrantless search or seizure lies
squarely with the prosecution.
[Citations.]†(
723.)
“In ruling
on a motion to suppress, the trial court must find the historical facts, select
the rule of law, and apply it to the facts in order to determine whether the
law as applied has been violated. [Citation.] We review the court’s resolution of the
factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]†(People
v. Hoyos (2007) 41 Cal.4th 872, 891.)
Vehicle
Code section 27001
title="">[3] provides: “(a) The driver of a motor vehicle when
reasonably necessary to insure safe operation shall give audible warning with
his horn.
“(b) The
horn shall not otherwise be used, except as a theft alarm system which operates
as specified in Article 13 (commencing with Section 28085) of this chapter.â€
In
the present case, Officer Metzger testified that the officers conducted the
traffic stop after appellant briefly honked his horn because he believed that
there had been a violation of the Vehicle Code (see § 27001, subd. (b)),
or, in the alternative, that the car’s occupants might be in need of
assistance. Appellant argues that, on the contrary,
honking his horn was a necessary safety measure in light of the police vehicle suddenly
pulling over to the side of the road and stopping. (See § 27001, subd. a).) Therefore, according to appellant, the
traffic stop was not based on reasonable suspicion, and the fruits of the
ensuing investigation should have been suppressed. (See Reyes,
supra, 196 Cal.App.4th at pp.
859-860.)
We agree with appellant that the prosecution failed to
satisfy its burden of proving that the officers possessed objectively
reasonable suspicion for the traffic stop.
(See People v. Johnson,
First, regardless of what the officers actually believed, it is
inherently reasonable for a driver to respond with a brief honk of the horn to a
car traveling directly in front of it suddenly pulling over to the side of the
road, to warn the driver of the other car that it is not safe to turn back onto
the roadway or open the door and step out into traffic. It simply was not objectively reasonable for
the officers to believe that, in the circumstances presented, appellant’s short
honk of his horn constituted a violation of the Vehicle Code. On the contrary, all reasonable evidence
pointed to his complying with the requirement of subdivision (a) of section
27001 that a driver must, “when reasonably necessary to insure safe operation[,]
give audible warning with his horn.â€
Second,
the alternative reason offered by the police for stopping appellant’s car—that
the occupants of the car may have recognized that they were passing a police
vehicle, and may have been in need of assistance—has absolutely no support in
the record. The traffic stop took place at
night; the officers were driving in an unmarked vehicle, presumably out of
uniform; appellant’s car continued moving after the honk; and the officers,
after stopping appellant’s car, did not inquire about any possible need for
assistance. This alternative reason
given for stopping the car, which is not just inconsistent with the first, but
exceedingly far-fetched, provides additional evidence that the officers’
subjective suspicion was not
objectively reasonable in the circumstances, but instead was unlawfully “ ‘predicated
on mere curiosity, rumor, or hunch.’ â€
(People v. Wells,
Hence,
we conclude that the trial court erred in ruling that the officers’ suspicion appellant had violated the Vehicle Code when
he honked his horn was objectively reasonable.
(See Souza,
to the search of his car, and the search itself, which all occurred immediately
after and as a direct result of the unlawful traffic stop, were conducted in
violation of appellant’s Fourth Amendment rights. (See Terry
v. Ohio, supra, 392 U.S. at p. 22;
Reyes, supra, 196 Cal.App.4th at pp. 859-860, quoting Wong Sun v. United States, supra,
371 U.S. at pp. 484-485.) Since the
“fruits†of the unlawful search cannot be used against appellant, the court
should have granted his motion to suppress evidence. (Ibid.)
The
judgment is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] Because the
sole issue raised on appeal concerns the propriety of the trial court’s denial
of appellant’s motion to suppress evidence, the factual background will be
limited to the evidence presented at the hearing on the motion to
suppress. (See Discussion,
name="_ftn2" title=""> [2] While the other two officers searched the
car, Metzger was checking Cal Photo to confirm the identity of Finau.
